Standing Committee A

[Mr. Joe Benton in the Chair]

Regional Assemblies (Preparations) Bill

Clause 5 - Referendums: frequency

Amendment proposed [this day]: No. 3, in 
Clause 5, page 3, line 20, at end add 
 'subject to any finding to the contrary by any court of competent jurisdiction'.—[Mr. Hammond.]
 Question again proposed, That the amendment be made.

Joe Benton: I remind the Committee that with this we are taking the following:
 Amendment No. 4, in 
Clause 10, page 5, line 3, leave out 'No Court shall' and insert 'A court shall only'.
 Amendment No. 5, in 
Clause 10, page 5, line 6, at end add 'if such a claim is brought within 10 days of the date of the referendum as specified in the order under section 2(1).'.

Gary Streeter: Thank you, Mr. Benton. I formally welcome you to the Chair.
 Before we adjourned, I made a few brief interventions about clause 5. I was asking about the accountability of the chief counting officer and, over lunch, I took the opportunity to remind myself of the provisions of the Political Parties, Elections and Referendums Act 2000. 
 What happens if a counting officer makes a mistake? We know that electoral mistakes can happen even in sophisticated democracies such as that of the only remaining superpower on the planet. What is the chain of accountability should such a thing take place? The Bill seeks to prevent court action from following, but who appoints the chairman of the Electoral Commission, if he is the counting officer, and who can remove him or her should a series of mistakes be made or other irregularities occur? I would like the Minister to deal with questions relating to the accountability of the counting officer.

Christopher Leslie: Thank you, Mr. Benton. I also welcome you to the Chair of the Committee. Although we hope to dispatch business effectively, we will look to your solid and wise guidance on procedural matters at all times.
 We are debating amendments Nos. 3, 4 and 5. I will try to answer the questions raised so far. Given my lack of specific legal training, I will make my answers as simple as possible, not least for my own understanding. 
 As clause 5 states, certification by the chief counting officer, which is made under section 128 of the Political 
 Parties, Elections and Referendums Act, will identify the result of the referendum. The chief counting officer will 
''certify
(a) the total number of ballot papers counted, and
(b) the total number of votes cast''.
 If they were taken in isolation, amendments Nos. 4 and 5 would each negate the meaning and intent of clause 10. I presume, however, that the hon. Member for Runnymede and Weybridge (Mr. Hammond) intends amendments Nos. 4 and 5 to be consequential on each other. He presumably means that courts should entertain proceedings only if 
''a claim is brought within 10 days of the date of the referendum''.
 The Government believe that the argument for a 10-day window of opportunity is flawed. It would allow frivolous challenges to pour in, be lodged and clog up the process, which could mean that the referendum result could not be finalised. That would be an undesirable frustration of the will of the people who expressed their wishes in the referendum. 
 The purpose of our approach is clearly to ensure that legal challenges to the referendum result are prevented. To place the debate in the context of clause 10, we are ensuring that 
''No court shall entertain any proceedings for questioning''
 the certification by the chief counting officer.

Philip Hammond: I am well aware of what clause 10 does. The Minister's argument is extraordinary: because somebody may make a frivolous claim, everyone should be prevented from accessing the courts. Such an argument could equally be applied in relation to the libel laws but we do not so apply it. The courts have well-established and effective procedures for dealing with vexatious and frivolous claims. Frankly, the Minister's argument does not stand up. It does not apply specifically to electoral appeals. It would apply across the board if it had any validity at all.

Christopher Leslie: It is precisely because we want to ensure that conclusions can be drawn swiftly and finally that there are provisions not only in this Bill, but in a weight of previous referendum legislation. Incidentally, such provisions were not always opposed by Conservative Members. The hon. Gentleman says that two wrongs do not necessarily make a right, but there are five specific examples of how legislation has set precedents: section 4 of the Referendum Act 1975, schedule 17(10) of the Scotland Act 1978, schedule 12(11) of the Wales Act 1978, section 4 of the Referendums (Scotland and Wales) Act 1997 and section 6 of the Greater London Authority (Referendum) Act 1998.
 Our purpose is to ensure a swift and final decision and a firm conclusion, so that the views of the public can immediately inform the decisions that are subsequently made by the Government.

Philip Hammond: I find this quite astonishing. Is the Minister saying that swiftness of the conclusion is more important than access to justice? If he is, he may find that the Chinese system has something to commend itself.

Christopher Leslie: I am not saying that. There are obviously issues surrounding legal challenge, to which I will turn when I comment on points that have already been made by hon. Members.
 The hon. Gentleman raised the issue of compatibility with the European convention on human rights—I know that he was concerned about that. Having considered the matter carefully, we have certified that the Bill is compatible with all articles of the convention. We have considered the matter particularly in relation to article 6, which, among other things, provides that a person's civil rights and obligations should be determined by independent or impartial tribunals such as the courts. We do not consider that article 6 is engaged for two reasons. First, the referendum is advisory, not binding, so no formal determination would be made by such a referendum, which means that that is not directly decisive on a person's civil rights or obligations. Secondly, we do not believe that the matters fall under the accepted definition of affected civil rights. 
 The hon. Member for Kingston and Surbiton (Mr. Davey) asserted that our approach is akin to the wholesale abolition of judicial review, that being similar to the point at issue. The legislation is framed specifically in respect of the chief counting officer and other counting officers certifying the numbers of votes that are cast and the result. It is defined precisely and goes no further than that. That hardly affects all the statute law of the United Kingdom. It is nonsense to suggest that the wider rights relating to judicial review are in any way being affected or curtailed.

Edward Davey: Attacking the principle of the judicial review of electoral outcomes is the thin end of the wedge. While I would not agree with all thin-end-of-the-wedge arguments, we should consider this one carefully because the courts are there to protect the rights of individuals. I ask the Minister to reflect carefully on the point that the hon. Member for Runnymede and Weybridge and I are seeking to make. During the recent elections in America, the Florida result went to the courts and it took some time to reconcile the matter through the judicial process. We all remember the hanging chads. If the outcome of an American presidential election can wait for a judicial review, I do not understand why the outcome of an advisory referendum cannot.

Christopher Leslie: I am not sure whether the consequences of the precedent that the hon. Gentleman quoted would necessarily follow through, not least because the referendum that we are considering is different, being advisory, not binding. Nevertheless, it is fair to ask a question about the scope for possible legal proceedings. The courts will make their own interpretations of the provisions that we set out in statute, should any challenge be lodged. The courts guard their rights and jurisdictions jealously. There is a substantial body of case law concerning similar provisions, to which I have referred. If a serious situation arose, involving, for example, fraud, and a challenge were made, I am advised that the court could argue that a fully valid certificate had never truly existed and that, therefore, the court had the right to
 intervene. The issue is the definition of a complete and full certificate. The court could not, and would not, substitute its own judgment for that of the chief counting officer; the court would not issue a new certificate to replace the original. The proposed additional wording in amendment No. 3 is unnecessary. The only options open to the court are to quash the certificate or the order and have a recount.
 The ways of challenging the proceedings set out in clause 5 are clear for the courts to interpret. The precedent has been set. That is the way that other legislation has proceeded in the examples that I have cited.

Philip Hammond: The Minister has argued that the Government's interpretation is that article 6 does not apply and that, in the absence of an article 6 imperative, it is efficient and convenient to exclude the courts. If article 6 did not apply in relation to elections to this place, for example, would the Minister argue that it was efficient and convenient to exclude the courts from reviewing any result—for example, the result of the Newark parliamentary election in 1997?

Christopher Leslie: Without being drawn into too many specific cases, all I can do is to pass on the Government's legal advice. We do not believe that these matters fall under the accepted definition of civil rights. In the case of Cheminade v. France, the European Court of Human Rights determined that electoral disputes were about political rights and not civil rights. That obviously helped to inform our opinion that this provision was compatible with the European convention on human rights.

Desmond Swayne: Does that Government advice, based on the distinction between civil and political rights, apply equally to parliamentary elections? Would the Government be able to exclude the courts in the same way from parliamentary elections?

Christopher Leslie: I would not presume to make any legal determinations. As a mere Government Minister, it is not for me to come to such conclusions. However, article 6 provides for the determination of a person's civil rights and obligations by an independent and impartial tribunal. Therefore, we have to consider not only the definition of civil rights but the definition of what a determination is. We do not believe that article 6 is engaged, for the reasons that I have set out.

Philip Hammond: The Minister has just used the expression ''a mere Government Minister''. As a mere Government Minister, he would not presume to determine these issues. However, that is precisely what we are talking about—allowing a mere Government Minister to determine issues that most people would think should properly be determined by the courts. Does he not feel uncomfortable about that?

Christopher Leslie: In my self-deprecating comments, I should have set out the wider context. The decision would not be for me; the decision would be for Parliament to make in the proceedings of this Committee and in approving the Bill as it progresses towards becoming an Act of Parliament. If Parliament decides today and during the passage of this Bill to
 approve this provision, the courts will have to take that into account when interpreting legislation.
 Hon. Members have to take other issues into account in their amendments. We believe that there is confusion in the wording of the amendments. For example, in amendment No. 3, the word ''finding'' might cover not only an order by the court, but any detailed findings or legal facts. There could be a huge grey area as to the effect of the words ''subject to'' and whether the certificate would no longer be valid.

Philip Hammond: I am not a lawyer either, but the matter seems fairly clear to me. Someone issues a certificate that purports to certificate that something has happened. A finding to the contrary by a court of competent jurisdiction is pretty clearly a finding that the certificate has not been properly issued. I would not have thought that there was much doubt or confusion about that.

Christopher Leslie: Except that I am advised—other members of the Committee have legal training in these matters—that a ''finding'' does not necessarily mean an order either overturning a certificate or not overturning it. It could be the ruling that the court makes in making the order: its interpretation of the law and the findings that it makes along the way. In so far as a certificate is either made or not made, if the amendment were introduced, there would be a huge number of grey areas. The phrase, ''subject to any finding'' could cause all sorts of legal and logistical difficulties.

Lawrie Quinn: I have listened closely to the Minister, and it seems evident that, as a mere Minister, he is right that he is obliged to act according to what Parliament has said in terms of the precedent of the Greater London Authority (Referendum) Act, the Referendums (Scotland and Wales) Act and, indeed, the Referendum Act. In that respect, the advice is clear. To breach that precedent would provoke a debate in which the Minister would not want to engage.

Christopher Leslie: My hon. Friend makes a strong point about the precedents that have been set, and that we seek to follow in the Bill in the normal way. Obviously, consistency with similar legislation is important. That needs to be taken into account.

Edward Davey: The Minister kindly elucidated earlier that the courts could judicially review the certificating process if it was considered that there had been fraud. Will the Minister clarify that and say more about what legal opinion he has taken on the matter? If the fraud were simply related to the number of votes cast, surely parts of clauses 5 and 10, to which the amendments refer, would prevent fraud from being examined by the court. That would go against the legal opinion that the Minister has said that he has taken.

Christopher Leslie: I am not sure that that is entirely the case. It is the process by which a certificate is formed that is at issue. Clearly, the Ouster clause—clause 10, which we will later discuss in more detail, and to which amendments Nos. 4 and 5 refer—has specific exclusions from legal proceedings. There is a wider
 interpretation that any court would make, should any challenge still be lodged, obviously taking into account clause 10 and the exclusions therein. In so far as there are other, and extremely serious, scenarios that the hon. Gentleman may wish to paint, the court has a certain leeway in considering the process leading up to certification with those issues as excluded by clause 10.

Lawrie Quinn: Is it not the case that the hon. Member for Kingston and Surbiton should talk to the hon. Member for Winchester (Mr. Oaten)? At the 1997 general election, the hon. Member for Winchester became a Member of Parliament. A certificate was issued, but it was overturned by a subsequent court. Eventually, there was a by-election—

Edward Davey: He won.

Lawrie Quinn: Indeed. Should not the hon. Gentleman take legal advice from the hon. Member for Winchester?

Christopher Leslie: Judging by the expression of the hon. Member for Kingston and Surbiton, I am unsure whether he wishes to take legal advice from his colleague. However, a pertinent point has been raised.
 I want to deal with a matter that was highlighted by the hon. Member for South-West Devon (Mr. Streeter). He asked who was responsible for appointing the chief counting officer and for holding them to account? Under section 128 of the Political Parties, Elections and Referendums Act, a chief counting officer is either the chair of the Electoral Commission or a person appointed by it. The chief counting officer appoints the counting officers, but the chair of the Electoral Commission has discretion over these matters. Therefore, accountability is to the commission and, in turn—as I understand the situation—to the Speaker's Committee of the House of Commons, and thence to Parliament. Thereafter, I suppose that the appointment is made by the Queen, on the basis of an address from the House of Commons under sections 1 and 3 of that Act. That is the chain of accountability.

Desmond Swayne: I do not want to be needlessly difficult, but I wish to press the Minister on the question that I asked him. He graciously made it clear that he does not know the answer to it—I do not know it either—but an answer should be provided; that could be done in writing. The key question is: does article 6 not apply because this is a civil matter as a consequence of the fact that the referendum is only advisory? If the referendum were not merely advisory, would this be a political matter, and would the article then apply? That raises the issue of the discretion that is available to Ministers.

Christopher Leslie: A fascinating series of reviews of electoral law has been passed to me. Perhaps the best thing for me to do would be to write to Committee members, specifically on the case of Cheminade v. France, which I cited earlier.
 As I said, many of these provisions have been included in previous legislation; they were not opposed when the Bills that contained them were enacted. The provisions exist; we merely seek a continuation of them. We must guard against frivolous action, and we 
 are following the advice that we have been given. Therefore, I ask the hon. Member for Runnymede and Weybridge to withdraw amendment No. 3, and not to press amendments Nos. 4 and 5. If that is not done, I ask the Committee to resist the amendments.

Philip Hammond: This is my first opportunity to have dealings in Committee with the Minister in his ministerial capacity, although we had many exchanges when he was as active a Back Bencher as Government Back Benchers are allowed to be in Standing Committees. I am sorry to say that I found the argument that he expressed in his first ministerial outing to be contrived and unconvincing in the extreme.
 We can only deal with what is written in the legislation. Clause 5(3) states: 
''Any question as to the number of votes cast in a referendum . . . is determined by the certificate of the Chief Counting Officer''.
 Clause 10 states: 
''No court shall entertain any proceedings for questioning the number of ballot papers or votes cast in a referendum''.
 That is fairly conclusive. I think that the Minister is suggesting—he may wish to confirm or deny this—that the clever and devious legal mind may find other ways to challenge the issue of the certificate than to challenge head on the ballot papers or votes cast. That is disingenuous. There is an important issue here, and my reading of Committee members' body language suggests that there is genuine feeling about it. 
 There may be a disagreement or dispute over the number of ballot papers cast. For example, if I stood outside a polling station all day and counted 350 people going in to vote, but when I attended the count later that evening the chief counting officer told me that there were only 250 ballot papers in the box, I would instinctively believe that a bundle of papers had gone missing, and I would expect to have a way to remedy my concern. It cannot be right to say that the courts should properly be excluded from that process. 
 The Minister has cited only precedent and expediency. He has further reinforced what I freely admit is already a well-enforced prejudice against the European Court by telling us that it determined that voting is not a civil right but a political right when it considered a French case. In the school in which I was brought up, voting is very much a civil right and it is to be protected and preserved at all costs. I have always understood that the purpose of our independent judiciary is to protect us against incursion on, and erosion of, our civil rights by an over-mighty Executive, which is represented in this case by a mere Minister who would have to make the decision in the absence of the right of access to the courts. 
 The matter is serious. I do not claim to be an expert on the precedent and I am prepared to accept that there is a precedent for excluding the courts. However, a precedent for doing something does not mean that it is right. My instinct as a non-lawyer is that it is absolutely wrong to exclude access to the courts on such an important matter. I know of no other example in civil life, especially when political appointees are the 
 ultimate determinants of a process, where the citizen is denied access to the courts to review a decision. Even a person who was charged with a serious crime—I shall not name the case, although we are all aware of it—on which a court made a decision to extradite and the Home Secretary made a decision to extradite had access to the highest courts to request a review of the Home Secretary's decision, and that is right. It is extraordinary that ordinary citizens of this country can be denied such a right of access on the ground that the right to vote is a political right, not a civil right. 
 I must press the amendment. I urge my hon. Friends and other Opposition Members to vote for the amendment and against the extraordinary clause 10. [Interruption.] As my hon. Friend the Member for New Forest, West (Mr. Swayne) reminds me, I hope that any right-thinking, free-thinking and liberal-minded Government Back Benchers who do not aspire to a ministerial career will join us. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Philip Hammond: On a point of order, Mr. Benton. I did not want to raise this at the beginning of the sitting because I did not want to interrupt my hon. Friend the Member for South-West Devon, who was in full flow. You were not here this morning, Mr. Benton, but the hon. Member for Scarborough and Whitby (Lawrie Quinn) suggested in an intervention that the Leader of the Opposition, my right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith), had indicated during a visit to the north-east that a future Conservative Government would scrap any regional assemblies that had been set up on coming into office. I bit my tongue at that moment because I wanted to check my facts, but for the record I advise the Committee that in an interview with The Journal, which is published in Newcastle, my right hon. Friend confirmed that an incoming Tory Government would not scrap the regional assemblies set by Labour without holding a second referendum. That important point should be placed on the record in view of the contrary comments made earlier.

Lawrie Quinn: Further to that point of order, Mr. Benton. I understand what the hon. Gentleman is saying. He refers to an article in The Journal. I may be able to provide him with a transcript of the live interview so that we can see what was actually said. I prefer to reserve my judgment until we see that transcript.

Joe Benton: Order. That is hardly a point of order. I have no objection to hon. Members correcting statements, but there is a way of doing so.
 The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill. 
 Question agreed to. 
 Clause 5 ordered to stand part of the Bill.

Clause 6 - Combination of polls

Philip Hammond: I beg to move amendment No. 31, in clause 6, page 3, line 28, at end add
'except a General Election or a Parliamentary by-election'.
 The clause deals with the ability to combine a referendum in a region with any other poll, again at the discretion of—perhaps I should say mere—Ministers. One understands the practical attractions of combining a referendum vote with another sort of poll, but there are democratic issues to be addressed if the Government are considering going down those lines. Once again, I focus the Minister's attention on the role of the Electoral Commission—a body which I believe that the Government set up to avoid charges of gerrymandering and partiality in decision taking. 
 The Minister will know that the commission is considering a request for clarification on the issue in relation to any future referendum on the euro from the no campaign, which is seeking to establish that it would be unacceptable to hold a referendum on the euro on the same day as a general election. I understand from the commission that the logic is fairly straightforward: a referendum on a yes/no question will typically be fought on a cross-party basis. Members on both sides of the conventional political divides hold different views on these issues. To combine such a poll with an election organised on conventional party political lines could distort the result of one or other of those polls. 
 I am sure that the Minister will correct me if he has different information, but I understand that the preliminary finding of the commission is that a referendum on the euro should not be held on the same day as a general election, for very good reasons. If that logic applies to a poll on the euro, does it not also apply to a poll on a question about the establishment of regional assemblies? That is a non-party question: Members of all political parties will hold each of the possible outcome views from that referendum. Having set up the Electoral Commission, it is critical that the Government heed its advice. 
 The amendment is a probing one. It was tabled to restrict the flexibility of Ministers to combine polls in a way that excludes combination with a general election or a parliamentary by-election. Of course, other polls—local government elections, for example—are held on a party political basis so it could be argued that, in order to be consistent, the amendment should 
 go further and exclude combination with any poll for elective office. 
 In tabling the amendment, I want to elicit whether the Government will commit themselves to be bound by the advice of the Electoral Commission. If the commission decides that it is inappropriate to combine a single-issue referendum with any other election, will the Government abide by it? If it determines that it would be inappropriate to combine with a general election, but not a local government election, Opposition Members would be happy to accept the view of the Electoral Commission as an independent and impartial expert body as long as the Government would be similarly bound by its independently expressed view. 
 Another important point takes us back to participation levels and thresholds, which we briefly debated this morning. Whatever one's view about the need for formal thresholds to give legitimacy to a poll, the level of participation will doubtless be the principal means of measuring the level of interest in the establishment of a regional assembly. It would be convenient for someone in favour of the establishment of regional assemblies to organise the poll in such a way and at such a time as to maximise the turnout. Combination with an election that is expected to have a higher level of turnout, such as a general election, might be attractive, but provide spurious legitimacy to the regional assembly poll.

Kevan Jones: I find it difficult to follow the logic whereby a higher turnout in a referendum somehow gives the poll a spurious legitimacy, particularly if the vote went against forming regional government. How can turnout affect the question put to the electorate?

Philip Hammond: One of the issues that Ministers will have to judge—we have not yet heard a Minister being clear about it—is the level of interest. Let us reduce it to an absurd level and say that the Secretary of State decides to hold a referendum in south-east England on a not very good hair day and only one person votes in favour. I assume that the Secretary of State would not seek to establish a regional assembly on that basis—

David Borrow: It depends who it was.

Philip Hammond: The hon. Gentleman brings us neatly back to our debate on the need for access to the courts. If he were a Government Whip, I would certainly not trust the outcome. It is, of course, an absurd example. I understand why Ministers do not want to bind themselves to any particular hurdle threshold level, but a certain level of turnout is essential to provide legitimacy to the process. When I pressed him earlier to be explicit, the Minister said that he did not know exactly what the level was. We shall doubtless return to the issue when we debate clause 1. If turnout level is to be viewed as a validator of the original ministerial decision to conduct a referendum—as, I believe, it must—we should not distort the turnout by holding the ballot simultaneously with another ballot that could typically be expected to achieve a much higher turnout. That would send a distorted message to the
 Minister and upset his finely tuned antennae when he makes his decision.

Edward Davey: The hon. Gentleman's use of the word ''distortion'' seems very odd in that context. Surely it is up to the voter to decide whether they want to use the ballot paper for the referendum at the same time as using it for the other election. The choice is for the voter, which is where it should be, and not for a political party.

Philip Hammond: That is fine in theory, but the hon. Gentleman knows very well that combining any ballot with, for example, a general election ballot will ensure that turnout is significantly higher. That could be misrepresented to indicate a high level of interest in a particular question. However, it would represent not a high level of interest, but simply the effect of human nature. If one has been presented with two ballot papers and has decided to fill one of them in, one will probably fill them both in; I should not have thought that that was a very contentious proposition.

David Borrow: I am trying to follow the points made by the hon. Gentleman. I accept that there is an argument about the distortion that would be caused by having two elections because different issues would be being debated at the same time. However, I fail to see how getting 73 or 75 per cent. of the electorate to vote in a referendum would distort the result compared with getting 20 or 30 per cent. of the electorate to vote. I do not understand his point, which seems to be that if the turnout is higher, the result will be of less value to the Minister than if it were lower. Perhaps he can explain to my feeble mind exactly what he has got in his.

Philip Hammond: I think that I will treat that as a slip of the tongue, Mr. Benton. The logical conclusion to the hon. Gentleman's argument is that we should have compulsory elections and 100 per cent. turnouts.
 The Minister is required to make a decision on the level of interest. The Minister for Local Government and the Regions said this morning that if the turnout were very low—he was not prepared to specify how low ''very low'' might be—the Minister would have got it wrong and have been shown to have made a wrong call. If a referendum were called on the basis of a ministerial judgment that there was a substantial amount of interest, and the referendum were then conducted on the same day as a general election, it would be impossible to validate the Minister's decision. 
Several hon. Members rose—

Philip Hammond: The hon. Member for Scarborough and Whitby was first.

Lawrie Quinn: I am grateful to the hon. Gentleman for allowing me to intervene. May I offer him a small—it is very small, Mr. Benton—anecdote concerning the by-election, which was held on the same day as the European election, in Leeds, Central parliamentary division? The electorate, discerning as it is, decided to turn out in greater numbers for the parliamentary election than for the European election.
 The average citizen will decide whether he wants to participate in different events on the same election day. He will decide whether he is interested enough to participate in a ballot, and there will be different turnouts in the situations that the hon. Gentleman describes.

Philip Hammond: I hear what the hon. Gentleman has said. If I remember the figures correctly, the Leeds, Central by-election is not one that any of us would particularly want to quote.
 We are getting slightly off the point, Mr. Benton. We can all play at being amateur psychologists on the human behaviour that kicks in when someone is presented with a ballot paper or two ballot papers. The substantive issue, which I am trying to get to through this probing amendment, is whether the Minister is prepared to give a commitment that the Government will be bound by the advice of the Electoral Commission, which they set up to give impartial, arms-length advice. I have already said that if they are prepared to be bound by its view, I will be happy to withdraw my amendment because I am happy to rely on it to make the appropriate call. 
 Notwithstanding what hon. Members have said, I had a meeting with the Electoral Commission on Friday, and it has formed the view—I hope that I am not misquoting it but I believe this to be the case—that it would not be proper to hold a euro referendum ballot on the same day as a general election. If that is the case, I suggest that the same logic could well apply to the regional assembly referendums and in those circumstances I ask the Government to be guided by the Electoral Commission, which they set up.

Matthew Green: I welcome you to the chairmanship of this Committee, Mr. Benton.
 I want to address several of the points that have just been raised. The first issue is whether we trust the electorate. Is the amendment not in danger of being rather patronising to voters? It suggests that they cannot tell the difference between ballots when presented with them. There may be an argument against holding many elections on the same day simply from the point of view of coping. In other parts of electoral law, I believe that the number of elections that can be held on the same day is limited to three. That is sensible from the point of view of counting and separating the processes out but to suggest that, as a matter of principle, referendums could not be held on the same day as a general election—or, to take a more extreme example, on the same day as a parliamentary by-election—suggests that the electorate are incapable of telling the difference between ballots. 
 The hon. Member for Runnymede and Weybridge raised the point that such elections are party political and in a referendum people might want to take different sides, perhaps within the same party. However, I noticed that the amendment excludes local elections, which, after all, are fought on party political grounds. I do not see why they have been missed out. By-elections can happen with some speed: they can happen within four weeks. We may well have a well-known referendum date and matters in progress 
 when a by-election is called. A by-election could even be called to spoil the referendum. Would the by-election cancel the referendum if they ended up being on the same day? The idea that the referendum cannot be held on the same day as a by-election does not hold water. 
 My final point relates to turnout. In any referendum, it helps if the turnout is high because what is more important than whether large numbers of people want to go to the poll on an issue is whether they want it at all. That is what we are trying to find out. The Conservatives seem to assume that if the turnout goes up, more people will vote for regional assemblies. I do not know where that assumption comes from. It is second-guessing the electorate. I would have thought that it was far more important to assess the views of as many members of the public as possible than to worry about the level of turnout. I fail to see where the amendment is really coming from.

Philip Hammond: Let me see whether the hon. Gentleman accepts the following proposition. Has he ever done one of those surveys in which a proposition is put to someone and they have to answer, ''Agree'', ''Agree strongly'', ''Disagree'' or ''Disagree strongly''? Can he not understand that the level of turnout reflects the depth of feeling? It may well be that if a high turnout was caused by an artificial factor, such as the simultaneous conduct of another poll, there would a broader sampling, but that would not measure the depth of interest, which is specifically referred to in the Bill as something that has to be taken into account.

Matthew Green: The key point about whether there is regional government is whether people want it. That is what is important. I would welcome almost anything that would encourage the electorate to take part—although I would stop short of compulsory voting. I struggle to see how that effect should be outweighed by wanting to see what the turnout might be.

Jim Knight: I agree with the hon. Gentleman. People in a ballot box with the ballot paper in front of them can indicate their level of interest in different ways. It is not simply a yes or a no: people can write all over the ballot paper or, if they really do not care, they can register no mark at all. They have a range of options. The most important thing is to increase the turnout as much as possible. That point supersedes the argument of the hon. Member for Runnymede and Weybridge about detecting levels of interest.

Matthew Green: To suggest that turnout shows the level of interest is slightly disingenuous. If we consider the general election, the safest seats generally had the lowest turnouts and the most marginal seats, where there was a chance of something changing, had the highest turnouts. Hon. Members may disagree, but that is statistically true. It may be that the electorate did not bother to vote—not because they were not interested in the result, but because the result was a foregone conclusion. It is spurious to suggest that turnout alone is important in assessing interest.

Edward Davey: Does my hon. Friend agree that the hon. Member for Runnymede and Weybridge is confusing two parts of the Bill? The part that talks
 about the level of interest relates to the Minister's decision on whether a referendum should go ahead. The hon. Gentleman suggests that some sort of post-rationalisation of that decision should be linked to the turnout figure. However, the two do not go together; that is a hole in the hon. Gentleman's argument and a good reason why the Committee should reject amendment 31.

Matthew Green: I thank my hon. Friend for that perceptive comment.
 It will be dangerous if we start writing into law various exclusions to prevent certain types of election happening on the same day. If we ever get to the stage of electing people to the other place, there may be reason to exclude that election from taking place on the same day as a general election. However, that is the only possible example that springs to mind.

Philip Hammond: Unless I am wrong, the advice of the Electoral Commission to the Government is that a referendum on the euro should not be held on the same day as a general election. We are not speculating about something that could happen; we are talking about a specific piece of advice. I ask the Minister and I ask the hon. Gentleman whether, if the Electoral Commission advises the Government that it would be inappropriate to hold a referendum for regional assemblies together with any other poll, they would expect the Government to follow that advice or to go off on a different route.

Matthew Green: Clause 7 says:
''The Electoral Commission may do anything they think necessary or expedient for the purpose of encouraging voting at referendums''.
 That will require the Electoral Commission to find means of increasing turnout. It is therefore highly unlikely that the Electoral Commission will rule it inappropriate to time the vote on a referendum for a regional assembly with that for a general election or for a parliamentary by-election. 
 Amendment 31 is rather confused and we shall not support it.

Desmond Swayne: The key point is that these referendums will be advisory. Prior to calling a referendum, the Secretary of State has to make some assessment of the level of support for the proposition. That can be done in various ways. One way of doing it is through the use of opinion polls. We already have evidence of that sort: the Library's publication that explains this Bill has a section on existing polling evidence. Such evidence that the Secretary of State may take account of will inevitably be handicapped by the fact that the campaign for the referendum will not be under way. The campaign will not get properly under way and focus the attention of voters until the referendum is called. Once the referendum result is known, the Secretary of State has to decide what to do—whether to set up the assembly or not. The result may have been close. Inevitably, he will properly take into account the overall level of support for the proposition, which will, of course, be informed by the turnout. If the poll is very low, it is likely that the Secretary of State will say, ''Well, there may be a majority of one but, given the level of the poll, I don't
 think it expedient to proceed.'' If there is a 50 per cent. poll and a majority of one, he is more likely to say, ''I wish that the result were clearer, but a substantial proportion of the population have voted. They have secured a majority so we shall proceed''. The decision is informed by the turnout.

Kevan Jones: Is not the important point that a high turnout in a referendum helps the Minister to make a decision? On measuring the depth of feeling, if people feel strongly against an issue, they will vote against it. What do the Conservatives have against giving people a say about what happens in their region?

Desmond Swayne: I have absolutely nothing against giving people a say. How can the Minister be properly informed about the strength of feeling about a proposition when the information telling him about it is at least 50 per cent. informed by the strength of the turnout?

Edward Davey: Will the hon. Gentleman give way?

Desmond Swayne: No, not until I have developed the argument.
 The turnout may have been affected by some other factor. The Minister cannot determine the strength of feeling about the issue if another issue brings people to the polls that day. 
 The reluctance of hon. Members earlier today to entertain any notion of a threshold indicated their sensitivity about the question of turnout, a sensitivity that is again in evidence. This morning, the Minister for Local Government and the Regions said, ''Turnout is very important.'' I am sure that we all agree. He went on to concentrate on a series of initiatives that would increase turnout, such as electronic voting. 
 Although such initiatives are important, I would not wish to go too far down the road of making things convenient for the voter. Voting should be convenient: obstacles should not be put in the way of voters. Ultimately, however, the voter has to make an effort to vote. If he is not prepared to make such an effort, that is itself a legitimate expression of political indifference and it behoves the political parties to take account of that. They must deal with the root problem: the way in which they conduct themselves and the propositions and policies that they introduce to entice the voters. 
Jim Knight rose—

Desmond Swayne: I will give way to the hon. Gentleman after I have given way to the hon. Member for Kingston and Surbiton.
 A low turnout is a perfectly legitimate measurement that would tell us that a regional assembly is not an exciting proposition—just as a high turnout would legitimately indicate the contrary. The Secretary of State should be aware of that when he is informed by the result and decides what action to take. That argument is perfectly logical, self-evident and uncontroversial. The sensitivity being shown by those in favour of regional governments is remarkable.

Edward Davey: The Conservatives are trying to persuade the Committee of an interesting proposition: that there is some notional strength of feeling when people mark a cross on a ballot paper. Is the hon. Gentleman saying that a cross from a person who went to the polls with a degree of enthusiasm and commitment is worth more than one from a person who went to the polls less enthusiastically? Is that what lies behind his concerns?

Desmond Swayne: No. In fact, it is the opposite. When we are informed by opinion polls that a certain number of people believe a certain proposition, it does not tell us very much. It is in the week before the pollster asks them their opinion that we need to know when they last thought about the proposition or when it last crossed their minds. Something may not occur to someone, but if it is for free, they will say that they want it too. That does not measure particularly well the strength of support for a particular proposition. According to the Bill, the Secretary of State must arrive at an estimate of the strength of feeling on and support for the issue. The tick in the box does not provide the right measure if it arrives there because the voter went to the poll that day for another reason.

Jim Knight: I am perplexed by the hon. Gentleman's argument and his passion for it, as it is so flawed.
 If there is a low turnout for a referendum that is held on its own, the Secretary of State may bear that in mind when he or she considers its outcome and makes a decision. However, that would be superseded if a higher turnout was achieved, artificially or otherwise, by holding it on the same day as another election, because a wider sample of opinion would be gained. People will either say ''yes'' or ''no'', or a number of people may say that they do not understand this business of regional government so shall not bother voting and just vote in the other election. Those are three different options that the Secretary of State can consider and make a decision accordingly.

Desmond Swayne: The hon. Gentleman is plain wrong. Let us compare two situations. In the first, a single referendum is held on one day and the ''no to regional government'' campaign win it by a majority of one on a relatively low turnout. In the second, a referendum is held on the day of a general election and there is a very high turnout, but the no campaign still win it by a majority of one—or by some other small amount. In the second situation, the total level of support for regional government, about which the Secretary of State will be informed by the result, will inform a different opinion from one that would be informed by a low turnout. The difference in the turnout is not a consequence of the strength of feeling for the proposition on either side, but of the fact that there was a general election on the same day.
 We are clearly not going to agree, but hon. Members who disagree with my proposition need to ask themselves why the Electoral Commission reached the opinion it has on the question of whether a euro referendum and a general election should be held on the same day. It was significant that the hon. Member 
 for Ludlow (Matthew Green) did not answer the question that he was asked. [Hon. Members: ''He did.''] No, he did not. He was asked whether he would follow the Electoral Commission's advice if it stated that it was not proper to hold referendums on the same day as another poll. He did not answer that question, but said that it was highly unlikely that the commission would reach such a decision. We are not asking about the probability of the decision being made, but about what would happen if the advice were given. If the Government indicate that they will follow the advice of the Electoral Commission, we will not press the amendment. That seems to me to be a very tolerant position to have taken.

Lawrie Quinn: The hon. Gentleman's argument is overwhelming in its certainty, but can he explain its basis? When I recently conducted an assessment that compared local referendums on specific issues with local government elections, it showed, if anything, that there was a larger turnout for the former than for the latter. Is not that the modern way by which the public would want matters to progress?

Desmond Swayne: The hon. Gentleman is absolutely right—he has got it in one. Single issues, especially local single issues, are much more important to people. They become so enthusiastic that they will fill a local hall to discuss them, but they cannot be got out to vote for local government. Therefore, if one wants to measure the strength of opinion on the proposition in question, one should not pollute it with another election.

Lawrie Quinn: Following the logic of that argument, could it not be the case that having an election on the same day as a referendum might bring the turnout for the referendum up to the higher level?

Desmond Swayne: Then, one would be measuring the strength of feeling on the specific proposition and giving the Secretary of State poor advice about it. That is self-evident.

Jim Knight: I shall try to make this point one more time and then I shall give in. A long time ago, I undertook some study of statistics, which did not interest me a great deal. I recall that one paid attention to the level of sample, because if it was small, one needed to have a much higher percentage to prove one's hypothesis. One might need 99 per cent. for a small sample, but 95 per cent. if it was much larger. I may not be making my point clear enough to the hon. Gentleman. I am trying to explain that if one has a small sample, that is pertinent because one will need a much clearer decision from the people—a much clearer gap between the yes and no votes—to enable the Minister to make a decision. If there is a much higher turnout, and therefore a much larger sample, that simplifies matters a great deal for the Minister, which is to be encouraged.

Desmond Swayne: As a statistician, the hon. Gentleman should know to distinguish between a random sample and a self-selected sample. It is not a question of his giving in so much as giving up. In reality, we have to measure support for a particular issue or support on a particular day for a whole range of issues. That is the difference. The key issue, as we see it, is whether
 Labour Members will accept the advice of the Electoral Commission. No one has yet answered that question.

Christopher Leslie: For clarity's sake, can the hon. Gentleman tell us whether his constituents were a random or a self-selected sample when they elected him?

Desmond Swayne: It was a comprehensive sample amounting to well in excess of 50 per cent. of the votes cast. For one last time, I press Labour Members to answer my question—will they follow the advice of the Electoral Commission?

Kevan Jones: Opposition Members began by arguing against holding referendums on the same day as general elections; now, they are hiding behind the Electoral Commission. To put the hon. Gentleman's question back to him, if the commission says that it is all right to hold a referendum on the same day as a general election, will Conservative Members support that?

Desmond Swayne: We said that we would withdraw our amendment.

David Borrow: I want to make a brief intervention on the issue that we should be discussing. There is clearly a question as to whether a referendum and a Westminster parliamentary election should be held on the same day. That is nothing to do with turnout, but simply to do with whether the two issues will get mixed up and distort the campaign. I have not yet reached a conclusion about that, but it is a legitimate issue. The turnout issue is completely spurious and irrelevant, because it gives rise to questions about whether one vote is more valuable that another. In reality, if we offered people a referendum on the establishment of regional government, and there was a majority of 1 per cent. on a high or low turnout, it would be difficult for Parliament not to legislate to set up such an assembly because that would be seen as a denial of democracy. If we have actually asked people in a region and given them the opportunity to vote, whichever side wins that referendum will expect that decision to be carried out by Parliament. I accept that the referendum is advisory to the Minister, but for all practical purposes no Minister would be able to refuse to implement its result.

Philip Hammond: Perhaps I misinterpreted what the Minister for Local Government and the Regions said this morning, but I thought that he definitely and deliberately left open the door to the possibility that if there were a very low turnout, the Secretary of State could choose not to act on the result of a referendum. Is the hon. Gentleman suggesting to his right hon. Friend the Minister and the Secretary of State that they should always be so bound, and if so, will he be proposing an amendment to the Bill to make the consequences of the referendum automatic when the result is laid before Parliament?

David Borrow: I am making no such proposition. I am saying that if people in my region, the north-west, have a chance to vote in a referendum to establish a regional assembly and the majority of people vote in favour of it, there would be one hell of a row if the Secretary of State decided not to introduce a Bill to carry out the
 result. That is the political reality and I think that the turnout would have to be very small indeed for us to be able to argue that a referendum in any area was not legitimate. If we give people the opportunity to vote, we have to act on the way in which they vote. I recognise that the way in which the legislation is put together allows such a vote to be advisory to the Minister. However, the political reality is that the Government will have to implement a Bill to carry out the findings of such a referendum and push it through Parliament.

Gary Streeter: In my exchanges with the Minister for Local Government and the Regions this morning, I put to him the proposition that turnout might be as low as 11 per cent., as it was in one of the referendums for a directly elected mayor. He conceded in his answer—Hansard will show us exactly what he did say—that in such an eventuality, the Secretary of State may have made a mistake in inviting the referendum to take place in the first place. He gave me the distinct impression that such a result would not be binding on the Secretary of State. If 51 per cent. were in favour of, and 49 per cent. against regional government on a very low turnout—11 per cent., 15 per cent. or 20 per cent.—would the Minister accept that his Department would have to take that into account in determining whether a regional government is set up? That is the distinct impression that we have.
 My concern is that Government Members and the Liberal Democrats, who are supporting the Bill, do not understand its nature. It is not correct to compare a general election with a European election, a local election or any other kind of election in which there is a distinctive and definitive outcome based purely and simply on votes cast. That is not the nature of the referendum proposed by the Bill. The votes cast in themselves will not necessarily determine the outcome of the election. The outcome will be determined by the votes cast and other indicators that the Ministers will receive from the referendum, of which turnout must be a hugely significant factor. 
 Therefore, if the Government are genuinely to test the weight, volume and quality of opinion in a region, they must take account of the number of votes cast for and against and the turnout in that region. How can they take account of the turnout if the election takes place at the same time as a different election? Ministers need to know, in determining whether to implement regional government on a low turnout, whether people have gone to a polling booth intending to vote for regional government or for another purpose entirely, such as the election of a Member of Parliament or another representative. 
 If I were in the Minister's shoes, I would want to have a stand-alone election, so that I could test precisely what people were saying. That is important because the consequences of the outcome of a referendum for regional government are awesome for the region. A massive upheaval of local government would follow and a new structure would have to be set up. There would be a completely different way of running our affairs, new bureaucracy, new government 
 and new representatives. Massive costs would be involved. Ministers must be able to judge precisely what signals a region is sending, but they will not be able to do so if an election coincides with any other election. I therefore hope that Government Members will consider carefully the arguments that Opposition Members have advanced very coherently. 
 It is important that turnout is taken into account. The Minister at this morning's sitting conceded that point. I now ask this Minister, the Under-Secretary—they are mighty Ministers both—to deal with a specific point when he replies. Does he believe that, if 51 per cent. of people in a region say yes and 49 per cent. say no on a very low turnout, the Government will be obliged to set up a regional Government in the area, as the hon. Member for South Ribble (Mr. Borrow) suggested? If the answer is no, or there is a shadow of hesitation, is it not essential to catch the full flavour of opinion in the region? Only a referendum should be held on the day. There should be no other election with it, which would confuse and mix the messages coming out of the region.

Graham Stringer: I am disappointed that my hon. Friends on the Front Bench did not dismiss this debate by saying straight off that they would accept the Electoral Commission's advice. Had they said so, we would not have had to go through this convoluted discussion about the weight of votes that have been induced by another election. It is a fairly obscure and mediaeval debate.
 Some members of the Committee may share my suspicion that much of the drive behind elected regional assemblies has been got up by the political classes, and that there is not a lot of support for regional assemblies outside them. I suspect that that is why my right hon. Friend the Deputy Prime Minister will apply a subjective test, not the electoral test that we have applied when elected mayors are introduced. I wish that my hon. Friend the Minister would say that, in this new area of subjective tests, we will accept the Electoral Commission's advice. 
 One of the strongest arguments, almost whatever the commission says, for separating out elections from referendums on constitutional matters is that advanced by my hon. Friend the Member for South Ribble, which is about political space. Let us imagine that in June 2004, at the time of the European elections, there are also local government elections. I will be interested if the Ministers say that that will not happen. At the moment, they are consulting the Lord Chancellor's Department about the possibility of moving the local government elections in 2004. 
 Let us imagine that there are European and local government elections, and referendums on regional assemblies. In any case, there is simply a limited amount of space available on television, in the media and in newspaper column inches to cover three important issues. The House recognises one as a constitutional issue because we are debating the early clauses on the Floor of the House. Having the same debate with the same number of hours and minutes on the television will reduce the access of those who are 
 opposed to regional assemblies—and, for that matter, those who are not—to the usual communications media.

Philip Hammond: I am listening carefully to the hon. Gentleman, but it is not just a question of political space. Some people will find themselves in the uncomfortable position of sitting alongside colleagues in one of those elections and opposite the same colleagues in another, which will be confusing for the public.

Graham Stringer: The hon. Gentleman is right. Clearly, more than one party will be in favour of regional assemblies, but members of most political parties will want to campaign against them. If we think of the usual BBC2 Sunday lunchtime programme in the run-up to the elections, I can envisage Labour and Conservative Members saying together that they do not want a regional assembly, but they will not vote for each other in European or local elections. It is wholly confusing and will not help to bring about a greater understanding of potentially profound differences.

Matthew Green: If the hon. Gentleman were faced with that proposition in the run-up to a ballot, would he understand it by looking at material on the television? If he would, but believes that the electorate would not, is he not being patronising?

Graham Stringer: The hon. Gentleman misunderstands what I am saying: I could reverse the question and put it back to him. I am not saying that people will not understand it when the issues are explained—I would never underestimate the intelligence of the electorate—but some of the issues are complicated and take time to explain. The problem is that the requisite time is unlikely to be available when a debate about a referendum on regional government is competing for space with debates about local government elections. It is a solid reason for keeping them separate. If the Electoral Commission states that referendums and elections should not be held on the same day, the Minister should simply accept it.

Christopher Leslie: I beg to differ from my hon. Friend. I hear what he says about the effect of combining polls and the implications of limited space on the media to discuss more than three issues. Of course he does not underestimate the intelligence of our constituents to deal with these matters, but the public is capable of handling more than three issues simultaneously and the media are also capable of doing so. There is no reason to close off the option of combining the polls, which is what the amendment would entail. It would exclude combination with a general election or a parliamentary by-election rather than with other referendums or local elections.

Philip Hammond: The Minister should not lose sight of the fact that it is a probing amendment. If he can give a commitment to follow the advice of the Electoral Commission, I shall instantly seek to withdraw it.

Christopher Leslie: I shall come to the advice of the Electoral Commission, and whether Governments should be bound by it, particularly on combination polls. Advice is just advice; it cannot be binding on a
 Government, and it would be wrong to regard it in that way. The issue of combining a poll is for Ministers and Parliament to decide. Any order would, of course, be subject to parliamentary scrutiny and could be debated in the normal way. Indeed, if a Minister were to abrogate responsibility for a decision and effectively pass it on to the Electoral Commission, it would be not only wrong, but potentially illegal, given the statute that established the Electoral Commission.
 On combining an election with a hypothetical referendum on matters such as the single European currency, I do not believe that that is necessarily relevant. Of course, the Electoral Commission may well issue advice, but we are talking about regional matters that the public are quite capable of dealing with, such as those in the amendment, 
''a general election or a Parliamentary by-election'.
 I was interested in the point made by the hon. Member for Ludlow about what would happen if an accidental by-election were to fall on the same day as a referendum. I am not sure that there is a legal scenario involved, but it is certainly an argument worthy of consideration. 
 The hon. Member for Runnymede and Weybridge argued that party politics during a general or by-election are of so fervent a nature that they would distort the voting and the outcome of the referendum; in the words of the hon. Member for New Forest, West, they would pollute the results. That is rather a bizarre concept, and I would wager that he would not say after the fact—the day after the result of the referendum was known—that the result was polluted because the public were confused by the clouds of partisan considerations. I think that the public are perfectly capable of forming judgments that are not clouded in such a way. As the hon. Member for Runnymede and Weybridge conceded, essentially ruining his argument, local elections are sometimes in many ways as political as general elections. 
 A curious issue was raised by, I think, the hon. Member for Runnymede and Weybridge. He contended that turnout levels would be seen as validating the decision to hold the referendum, and said that that would distort the Minister's view of his decision if he were to look back and regret making it. The hon. Member for South-West Devon asked whether, if the result was finely balanced, but there was a low turnout, that would undermine the Minister's initial position. My right hon. Friend the Minister for Local Government and the Regions quite rightly conceded that it might be an indication of the judgment of the Minister in the official soundings as to the interest in the referendum. 
 We should not confuse interest in the referendum with interest in establishing an assembly, which is an entirely different matter. One does not judge interest in holding a referendum by asking whether people are more or less in favour. It would be an interesting judgment to make that a referendum should be held if it seemed during the soundings that a lot of people were against the idea of an assembly, but that would still, in many ways, justify the holding of a referendum. Opposition Members may be confusing 
 the issue to do with the assembly with that of whether to hold a referendum through the soundings process.

Philip Hammond: I advise the Minister to think about that again. Surely, he is not suggesting that if the ministerial soundings detected that 75 per cent. of people in, for instance, the south-east rejected the concept of an elected regional assembly, the Minister's reaction should be, ''Ah, there is lots of interest in that proposition; we must have a referendum at once?'' That would be absurd.

Christopher Leslie: The considerations to be taken into account are the soundings that will be published and discussed; in fact, that has already been done—they are out there. However, the active levels of interest in having that debate and referendum should not be confused with the separate issue of the degree of interest in establishing the assembly, which would be determined when that referendum is being held.

Gary Streeter: Is the Minister saying that, irrespective of turnout, if a referendum were held and 51 per cent. of the electorate voted yes, his Department would always accept that as the basis upon which an elected regional assembly would be established? Will they always go forward if there is a 51 per cent. vote in favour?

Christopher Leslie: The hon. Gentleman's contention seems to be that, somehow, a great deal can be discerned about the views of the public from abstention and lack of participation.

Gary Streeter: Is that a yes or a no?

Christopher Leslie: I am coming to the hon. Gentleman's point. He is asking whether a low turnout would affect Ministers' decision. It is difficult to draw conclusions about the views of the public when many people do not vote. Some Conservative Members say that a low turnout would indicate that people do not want an assembly, but other hon. Members might say that it would indicate ascent or acquiescence to the notion of an assembly. One could argue that either way. The views of the public cannot be discerned if people do not vote; only the views of the people who have voted can be measured. That is why we have the advisory referendum for Ministers.

Gary Streeter: The Minister seems to be implying that there would be an elected regional assembly if 51 per cent. of people were to vote yes, irrespective of turnout. If that is the case, why is the referendum only advisory? Why should we not let the numbers decide—if they vote in favour, why not make that binding? What extra discretion is the Minister looking for?

Christopher Leslie: Referendums have usually been advisory in that sense; that is the way that we have traditionally held them in our constitution. We have taken this decision in order to proceed in that way. We have progressed on a common-sense basis, and there is no point in being completely legalistic about all of these matters. However, a point is at issue, which Opposition hon. Members have laid before the House, about the amendments that we will be taking later that
 address the virtues or otherwise of low turnout, abstentions and so forth. Those amendments will be hotly contested when we come to talk about them.
 When we look at the nature of this referendum, we should also be clear that the amendment would not prevent a referendum from taking place on the same date as a general election or a by-election. It would simply prevent the polls from being combined, so that if they were to be held on the same day, returning officers and counting officers would have to make entirely separate arrangements—there would have to be separate notices of polls, polling stations, returning officers, counting arrangements, and so forth. Therefore, the amendment could lead to significant increases in costs and bureaucracy, which is another reason why it should be rejected. 
 I hope that the hon. Member for Runnymede and Weybridge will consider withdrawing the amendment, and I urge hon. Members to consider our arguments.

Philip Hammond: I am disappointed that the Minister made that final remark; it was not worthy of him. Conservative hon. Members would readily acknowledge—as, I am sure, would Liberal Democrats—that many Opposition amendments will be technically imperfect. They are intended to probe the Government and to get some reaction to the substance of the points that they address. They are not designed to invite a Minister to get a dozen civil servants to come up with technical arguments about why the amendments would not work.
 The hon. Member for South Ribble succinctly said what needed to be said in this debate; it is clear that there are issues that must be addressed with regard to holding a referendum and a Parliamentary election—and, possibly, other elections—on the same day. I accept that the level of turnout and what we should read into it is a separate issue. I agree that it is valid, and I shall return to it later, but it is a separate issue. There is an issue to be addressed about whether a referendum and another election should be held on the same day, so we have tabled a probing amendment seeking to prevent that combination in order to see the Government's reaction. 
 The obvious solution is for the Government to say that they will accept the advice of the Electoral Commission. Frankly, the commission is newly established. I believe that it was established for the purpose of putting some distance between the participating parties in any political debate and the people who hold the ring during the election or referendum that follows. The Minister insisted that the commission's advice is only advice. That makes me slightly uncomfortable. Technically it is advice, but the Minister will see on the first page of the Bill that Her Majesty will enact the Bill ''with the advice'' of the Commons. It is only advice, but Her Majesty is unlikely not to take the advice of the Commons and the Lords in the present Parliament assembled. I would like to think that the advice that the commission will give to Ministers will have the same force. If not, what on earth was the point of setting up the commission and expending public money on a body if Ministers feel free to ignore it? 
 On turnout, I accept that the debate has been muddy. Perhaps none of us is an expert on the issue, but there are questions swimming around in the muddy water and they need to be addressed. There are two different questions with regard to the single yes/no proposition: would someone answer yes or no when presented with the argument, and how important does the person believe the issue to be? I say with all humility that one of the lessons that the Conservative party learned in the last general election is that one can raise an issue about which people feel overwhelmingly one way or another, but if one forgets to ask them where they rank it in order of importance, one could be in trouble. That is what we are dealing with here. A considerable number of people may say yes or no when asked by a pollster if they support x, y or z, but if asked how important they believe the issue to be in the grand scale of things, they may say it is of little importance.

Kevan Jones: Is there not a third option for the person in the ballot booth? If the question is yes or no, they can simply abstain by not voting, which is what happens in general and local elections. In 2001, county elections were held in Durham at the same time as the general election. There was a difference in different wards between the turnout for county elections and the general election. People therefore have the option to abstain if they so wish.

Philip Hammond: The hon. Gentleman is right. There were different turnouts in my constituency between county elections and the general election held on the same day. The discrepancy is fairly small, however, as I am sure he would acknowledge. The turnout for the county elections is always higher in years when the county poll is held—I will not say combined as the Minister has drawn a technical distinction—on the same day as a general election. I am not an expert on these matters, but I understand that it is generally accepted that a distortion is introduced when people are asked to vote on party lines in one election and on non-party lines in others. If people put their cross in a box against the candidate of their preference in a party election, it defies human nature to think that hearing the person for whom they had voted arguing the case for either a yes or no vote would not influence their vote in the referendum.
 This morning the Minister drew attention to the task that the Secretary of State must perform before a referendum is called: he must assess the level of interest. The Minister was asked what would happen if the turnout was very low and one of his answers was that a person might challenge the Secretary of State's original assessment. One of my worries is practical. The Secretary of State might, for whatever political reason, be inclined to declare that he has made the subjective assessment that there was sufficient interest. No one could hold him to account for that on any reason other than the turnout in the ballot. He could effectively ensure that evidence to support the correctness of his decision was obscured by combining the referendum with another poll. 
 As the hon. Member for Manchester, Blackley (Mr. Stringer) indicated, the entire debate could have been avoided if the Minister had simply accepted that 
 the Government intended to accept the advice of the Electoral Commission, which they set up. I could then have stood up an hour ago to ask the leave of the Committee to withdraw the amendment and we could have gone on to the delights of the next group. I am disappointed by the way in which the Minister dealt with the amendment. 
 I shall not press the amendment because there is real concern about the issue on not only the Opposition Benches, but the Government Benches. Hon. Members of all parties recognise that an issue must be addressed. Pressing the amendment now would probably force Government Members with worries to vote with the Government. It would be more constructive to urge such Government Members to make their concerns felt privately to Ministers in the hope that we might have a more fruitful debate on the subject either on Report or when the Bill is considered in another place. Therefore, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Philip Hammond: I beg to move amendment No. 6, in
Clause 6, page 3, leave out line 33 and insert 
 'has consulted the Electoral Commission on the proposed order and has published the response of the Electoral Commission'.

Joe Benton: With this it will be convenient to take the following:
 Amendment No. 25, in 
Clause 6, page 3, line 33, at end insert 'and publishes their advice'.
 Amendment No. 26, in 
Clause 6, page 3, line 33, at end insert 
 'and the voluntary chamber of the Region and publishes the advice of both'.
 Amendment No. 9, in 
Clause 9, page 4, line 44, at end add 
 'and publishes the Electoral Commission's response'.

Philip Hammond: The group of amendments addresses publication of the advice that Ministers receive from the Electoral Commission. My theme will be familiar to Ministers and Opposition Members because when scrutinising Bills, we invariable try to ensure that Ministers' actions are transparent and that the advice on which they are apparently based is visible and available to all.
 Since tabling the amendments, I have met representatives of the Electoral Commission. I understand that the Electoral Commission's intention and working practice will be that all advice that it gives to Ministers in response to a formal request for advice, rather than due to informal discussions among officials, will be published on its website. That might appear to render the amendments redundant.

Nick Raynsford: It does.

Philip Hammond: The Minister says it does, but not quite. The Electoral Commission would not publish such advice only if it was required by statute not to do so. By including in the Bill provisions requiring publication, we would prevent the Government from amending the Political Parties, Elections and
 Referendums Act 2000 to prevent the publication of advice directly by the Electoral Commission.

Nick Raynsford: Paranoid.

Philip Hammond: From a sedentary position, the Minister says that I am being paranoiac. The body language of Ministers, who set up the Electoral Commission but apparently do not want to be bound to take its advice, does not give us a huge degree of confidence that they will always want that advice to be in the public domain. If they are comfortable with the advice that they receive being published, how on earth could they object to a requirement to publish it on the face of the Bill.

Christopher Leslie: I shall come to the hon. Gentleman's detailed arguments when I make my speech. On behalf of the Conservative party and the putative Government in waiting—an unlikely eventuality that is many, many generations ahead of us—for whom he is speaking today, I should like him to clarify whether he is saying that in all cases and under all circumstances he, as a Minister, would undoubtedly institute the view expressed in all judgments made by the Electoral Commission—yes or no?

Philip Hammond: My understanding is that the purpose of establishing the Electoral Commission was to create an independent holder of the ring to allow issues such as the combination of polls to be decided in a way that was not partial to one side of the argument or the other. I am not sure whether I am in favour of the creation of the Electoral Commission. What I am suggesting to the Minister is that having created it, one must accept its advice in order to be consistent. Otherwise, what was the point of creating it?

Matthew Green: The hon. Gentleman is saying that a Conservative Government would automatically accept the advice of the Electoral Commission. Would they also automatically accept the advice of senior Army officers who were in a similar independent position?

Philip Hammond: I am not sure whether senior Army officers are in an equivalent independent position. I recommend to the hon. Gentleman that he gets the wax removed from his ears because I did not say that a Conservative Government would automatically accept such advice. I was being berated from sedentary positions by those on the Government Front Bench for not having said what he has just accused me of saying.
 The proposition is simple: if the Government are happy to have the advice in the public and acknowledge that the routine daily working practice of the Electoral Commission will be to publish such advice unless it is prevented from doing so, what could be the harm in writing that on to the face of the Bill to make it clear that the Government are determined to be transparent about the methodology?

Edward Davey: I rise because our amendment No. 25 is very similar to the hon. Gentleman's amendment, which I shall therefore briefly support.
 The hon. Member for Runnymede and Weybridge is right that the Government have nothing to fear from writing such a commitment on to the face of the Bill. The Government claim to be in favour of freedom of information and claim that they will listen carefully to the Electoral Commission, which has said that it will publish its advice unless it is prevented from doing so. Those arguments add up to a powerful case for the Government accepting this minor amendment; whether they choose the Conservative amendment or our amendment is immaterial. 
 Amendment No. 26 is slightly different. It would add to the people to be consulted by the Minister 
''the voluntary chamber of the Region''.
 The reason why we have done that relates to arguments that we had in the previous sitting. It would enable the Minister to find out whether those people who are most in tune with the debate, from all the political parties, believe that there is a problem with combining the polls. 
 Reference should be made not only to the Electoral Commission, but to people in the region. We wondered whom we should ask the Minister to consult in the region. There were several different options, but we thought that the nascent assembly would probably be the most sensible regional representative organisation for the Minister to consult. We have given the Minister another option to add to the list of consultees. Although he may think that that is a small point, taking the final decision on the combination of the polls should reflect some opinion from within the region that the referendum will affect. That is the purpose behind amendment No. 26.

Christopher Leslie: We have a rather intriguing series of amendments before us. Amendments Nos. 6 and 25 would impose a legal obligation on the Minister, for any order made under clause 6, to publish the response received from the Electoral Commission when the Minister consults it on the contents of the order. Such an order would make provision on combining the polls on referendums under the Bill with, for example, polls at local government elections.
 Amendment No. 9 seeks to impose a similar obligation on the Minister to publish any responses received from the Electoral Commission in complying with the duty under that provision to consult. There is a duty to consult under clause 9 on payments to counting officers by the Electoral Commission. 
 The crux of the matter lies in the fact that the Electoral Commission's responses are its own responses. As I said earlier, its advice is exactly that. It is independent of the Government and we believe that it should be able to decide independently what it should disclose according to its own feelings and legal obligations, and to decide for itself about publication. 
 It would be strange for us to enshrine in statute the requirement that the Electoral Commission must publish in this case, not least because section 7 of the 
 Political Parties, Elections and Referendums Act 2000 also required the Electoral Commission to be consulted on certain changes to electoral law, but contained no equivalent provision requiring the publication of that advice. 
 I know that Opposition Members do not always hold consistency dear, but we believe that it is important in this legislation. If there was a situation in which Ministers formed their opinion on particular matters by receiving consultations from the Electoral Commission, the thinking behind that might be subject to free access through the code of practice on open access to Government information or through the provisions of the Freedom of Information Act 2000. However, to insist on the way in which the Electoral Commission should divulge its views is heavy handed. I also find it rather peculiar. 
 My right hon. Friend the Minister for Local Government and the Regions said that there might be a touch of paranoia in the argument of the hon. Member for Runnymede and Weybridge (Mr. Hammond) that a future Government might legislate to prohibit the Electoral Commission from publishing any secret advice that it had given. One would need Machiavellian thinking for that hypothetical scenario to be possible.

Gary Streeter: Did the Minister say that although he is not keen to include in the Bill the fact that the Government will allow for the Electoral Commission's advice to be published, he is relaxed about making public the Government's reasons for rejecting or accepting the Electoral Commission's recommendations? Is he giving a commitment that the Government will publish their reasons for taking a decision once they have received the advice of the Electoral Commission?

Christopher Leslie: We are discussing whether to publish advice from the Electoral Commission. We believe that it should be up to the commission whether to publish; there should not necessarily be anything in statute.
 The hon. Member for Runnymede and Weybridge asked about the possibility of future Administrations deciding not to enshrine a right for the commission to publish its own advice. He suggested that such a possibility was a reason for enshrining that right in law. No Parliament can bind its successors. It would be peculiar if we tried today to prevent a future Administration from making decisions as they would normally do. 
 I am surprised by some of the amendments, but I am getting used to the idea of probing amendments. Amendment No. 26, tabled by the Liberal Democrats, is on the combination of polls. The amendment seeks to ensure that advice that is sought from regional chambers should be published. I cannot see what particular expertise regional chambers could offer on the combination of polls. I can see why the expertise of the Electoral Commission would be sought on that subject, but not that of the regional chambers. The hon. Member for Ludlow spoke about the advice of Army officers. The argument for that is just as legitimate as that for the regional chambers. Many 
 of the chambers are not yet incorporated bodies and the practical effect of amendment No. 26 would be to require the Government to consult every member of a regional chamber. I do not want to dwell on technical issues, but there are broader principles to consider. We have established the Electoral Commission in a way that allows it to make its own decisions. I urge hon. Members to withdraw their amendments.

Edward Davey: The Minister must acknowledge that clause 6 says that a Minister will decide. We are trying to ensure that the Minister takes extra advice. The Minister is right to say—we are not contesting the point—that the Electoral Commission should be a key source of advice. All we are suggesting is that someone in the region that will be affected should be consulted, after which the Minister would take the final decision. I do not think that it is either onerous or unreasonable to suggest that the Minister should consult people in the region that will be affected.

Christopher Leslie: It would have been different if that had been what the hon. Gentleman's amendment said. However, amendment No. 26 is not just about consulting people in the regions. It refers to the regional chambers. I cannot see what added expertise the regional chambers would offer in the question of the combination of polls, which is what clause 6 is about. Putting aside any technical issues, I cannot see why such consultation would offer anything extra. The hon. Member for Ludlow mentioned Army officers.

Gary Streeter: I am grateful to the Minister for giving way. He has been very obliging. Before he finishes, will he put on record what he understands by the word ''consults''? Does consultation have to be in writing? Would oral consultation be fine? Would a phone call suffice? It would be helpful to know what the Minister means by ''consults''.

Christopher Leslie: The hon. Gentleman is a lawyer, for which I forgive him. I understand that there are clear legal definitions of all these matters. It might be helpful if, at some point, I write to him on the legal definition of consultation. We could consider how many angels may dance on the head of a pin. It is clear that there will be consultations, but we do not agree that the need to publish them should be enshrined in the Bill. I urge hon. Members to withdraw amendment No. 6 and not to move the other amendments in the group.

Philip Hammond: For the record, I want to correct something that the Minister said. I did not say that amendment No. 6 was a probing amendment. Amendment No. 6 stands on its own; it is a substantive proposal to amend and improve the Bill. Of course, I cannot speak for the Liberal Democrats' amendments Nos. 25 and 26.
 The Minister argues that it is up to the Electoral Commission whether it publishes its advice to Ministers. That is being slightly disingenuous. The Electoral Commission does not have a statutory obligation to publish that advice; indeed, there is no statutory framework that says that that body should publish it. It publishes simply as a matter of practice. On Friday, I visited the Electoral Commission's offices and I noticed that the heating system was not working properly. I suggested that if Electoral Commission 
 published something that the Government did not want it to it might take longer to get the heating system fixed. There are many ways in which the Government can apply pressure to bodies such as the Electoral Commission, short of primary legislation, to prevent them from publishing information. 
 On framing the amendments I was motivated by my experience of similar debates during previous years on various pieces of health legislation. The Secretary of State is invariably obliged to consult various people, but he is not obliged to publish the results of consultations and those people typically do not publish the responses that they make. Perhaps they think that it would be unwise to do that. At present, the Electoral Commission—a relatively new body—proposes always, as a matter of course, to publish its responses to consultations with Ministers and to requests for advice. I hope that it will continue to do so. 
 I am not being absurdly paranoid because I prefer there to be some clear enshrinement of an obligation to publish. If we were debating the Political Parties, Elections and Referendums Act 2000, a better way to do that might be to write into it a requirement on the Electoral Commission to publish advice that it gives to Ministers in response to a formal request—but we are not. The only option that is available to us is to write that into the Bill, so that any advice that is given to Ministers is published. 
 I do not understand why the Minister is so paranoid about writing into the Bill an obligation to publish the advice that Ministers receive, on which they will act. He has said that he does not have a problem with such advice being in the public domain. What on earth does he seek to hide by refusing to have such an obligation included in the Bill? That advice will underpin the decisions that Ministers will make. On that basis, I will press the amendment to a Division. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 8.

Question accordingly negatived. 
 Question proposed, That the clause stand part of the Bill.

Philip Hammond: I shall briefly deal with the only part of subsection (2) that we have not yet chewed over. I am concerned to probe the Minister on the apparent wish of Ministers to give themselves discretion—subsection (2) shows that nicely. The purpose of the 2000 Act is regulating referendums
 and ensuring that they are conducted objectively and fairly. However, when we first come across a Bill that would put a referendum in place under the auspices of that Act, we find a clause that allows a Minister to make an order that
''may apply or incorporate with or without modifications or exceptions any provision of any enactment.''
 In other words, it is entirely up to Ministers whether any specific parts of the Act apply or do not apply to the referendum in question—with or without any modifications that they may wish to make. 
 In short, there is no point in the Political Parties, Elections and Referendums Act applying to this referendum because Ministers can apply or disapply or amend any part of it. That seems to be an extraordinarily wide degree of discretion. I wonder whether the Minister can justify that and perhaps give the Committee an example of how he would expect to use the power.

Gary Streeter: I make two brief points before the Minister finally winds up. First, why is clause 6 necessary? What statute prevents the Government from organising two or more polls on the same day? It is a genuine request for information, because I do not know. I think that I must live in a country where everything is permissible unless a law prevents people from doing it. The Government are entitled to hold a referendum at the same time as another poll unless something prevents them. Perhaps something does so—perhaps it is on the way—but I do not know what it is.
 My better point is about subsection (3). The Minister rightly accuses me of being a lawyer. Yes, I pored over statutes year after year when I had a proper job, but I have never seen a subsection like that. It is utterly meaningless. It states: 
''A Minister of the Crown must not make an order under this section unless he first consults the Electoral Commission.''
 What on earth does that mean? The Minister may be sitting at his desk on a Tuesday afternoon and may more or less have decided to go ahead with a poll the next day—perhaps he wants to combine a poll, a referendum and a general election—so he rings up the chairman of the Electoral Commission and says, ''This is what I propose to do. What do you think?'' The chairman of the Electoral Commission may say, ''I am totally against the idea.'' The Minister will reply, ''Thank you very much. Goodbye.'' He has consulted the Electoral Commission and off he goes.

Philip Hammond: I am sorry to disappoint my hon. Friend, but when we come to other parts of the Bill, especially clause 1, he will find that they contain equally meaningless provisions that require the Secretary of State to do various things that he could happily do from his desk after lunch on a boring Thursday afternoon.

Gary Streeter: I am grateful to my hon. Friend. He is ahead of me; I have not yet reached the end of the book, but I am sure that he is right. In my opinion, this is the statutory equivalent of new Labour spin. It is utterly meaningless. I presume that it is meant to persuade people that safeguards have been put in place—but they do not exist. It is a completely
 meaningless safeguard. It protects no one from anything; a quick telephone call on that famous wet Thursday afternoon would suffice to meet the provisions of subsection (3). Unless the Minister can demonstrate otherwise, the Bill will contain all sorts of provisions that do not provide the safeguards that they purport to provide.

Christopher Leslie: A number of points have been made that I would like to address, but I reiterate that clause 6 is about enabling provision to be made by order to combine polls on referendums with other polls being held at the same time. Polls on referendums could be combined with polls for local government elections, parliamentary elections, European elections and so on. Without clause 6, the polls would need to be run in parallel, even if voting for all polls was on the same day. That is the advice that we have received.
 The question is why the provision is needed. We want to make sure of the smooth, efficient amalgamation of some of the administrative arrangements to allow a combination of polls to take place in a common-sense manner, rather than in the strict statutory and separate manner in which they would otherwise have to take place. If that happened, it would cause a lot of extra administrative costs and a lot of unnecessary work for returning officers, counting officers and so on. Examples of the type of thing that such an order might provide for would include a requirement for different colour ballot papers for a referendum and an election, and requirements that the same polling stations should be used, that notices of publication in connection with an election should refer to the fact that the poll for the election was to be taken with the poll for the referendums and so forth. Those are the sort of issues that are necessary and will be enabled by clause 6. 
 The hon. Member for South-West Devon said that subsection (3) is relatively meaningless.

Gary Streeter: Utterly meaningless.

Christopher Leslie: The Electoral Commission must be consulted and its view taken into account before any order is made. Any such order would be subject to the affirmative resolution procedures in the House, giving Parliament a full opportunity to consider any proposed combination of polls. If that were not explicitly stated, Opposition Members would have complained vociferously, as they were doing earlier. I realise that the hon. Member for Runnymede and Weybridge said in the small print that he used when speaking to the programme resolution that consistency in argument would not necessarily be achieved throughout the debate. His small print may well apply now.

Gary Streeter: The Minister keeps looking at the clock whenever I stand up and I am not quite sure why. He read out words that interpret subsection (3) on at least two different levels. On one, the opinion of the Electoral Commission is to be taken into account. Where is that to be found? I am seeking the answer, though perhaps I have not read far enough into the Bill. He then talked about an affirmative resolution.
 Could he please tell me where that relates to subsection (3)?

Christopher Leslie: I think that the letter that will be winging its way to the hon. Gentleman on the definition of the word ''consults'' will be of special interest to him, given my understanding that the consultation is a two-way process. That will clarify the matter.
 The hon. Member for Runnymede and Weybridge thinks that under subsection (2) the Government can disapply any provision of the Political Parties, Elections and Referendums Act 2000. That is not the case. Subsection (2) is a standard provision, as is, for example, section 129(2) of the 2000 Act. The power is not unfettered: it must be made for the purposes of the preceding subsection. The same applies in the present case. The order mentioned in subsection (2) is that described in subsection (1), with a number of provisions and provisos surrounding it. Subsection (2) is not as unfettered as the hon. Gentleman described. 
 The clause has been framed to ensure that there is sufficient scope and flexibility to achieve common-sense amalgamation of some of those administrative arrangements that would otherwise get in the way of an efficient and smooth-running combined poll. The clause makes sense, and I commend it to the Committee. 
 Question put and agreed to. 
 Clause 6 ordered to stand part of the Bill.

Clause 7 - Encouraging voting

Philip Hammond: I beg to move amendment No. 32, in
Clause 7, page 3, line 37, leave out 'voting' and insert 'participating'.

Joe Benton: With this it will be convenient to take the following:
 Amendment No. 33, in 
Clause 7, page 3, line 38, at end add 'provided that any such thing that the Electoral Commission do shall treat abstention as an act of participation and shall draw attention to the effect of abstention in such a referendum'.
 Amendment No. 28, in 
Clause 8, page 4, line 13, at end add 'and the significance to the outcome of the referendum of abstention'.

Philip Hammond: I think that we would all generally support encouraging voting. However, I am afraid that we are to be taken to some familiar ground on which we have already touched. Mindful of the time and the commitments that we made during the Programming Sub-Committee to keep things moving, I do not want to spend too much time on the matter.
 Amendment No. 32 changes the word ''voting'' to ''participating''. It is a consequential amendment that would be needed if the Committee or indeed the House were to agree to insert the principle of thresholds into the process. 
 Amendment No. 33 requires abstention to be treated as an action rather than an inaction, and 
 amendment No. 28 does something similar in relation to clause 8. I hope, although it may be a forlorn hope, that it will not be necessary for us to debate the benefits of thresholds in order to debate the logical necessity for these provisions if a threshold is introduced. They are two separate things. 
 If a threshold test is introduced—of course, Parliament may not agree to it—it will be important to make certain changes. It will be necessary to require the Electoral Commission to encourage participation in the referendum, because if a threshold is introduced, abstention will be an act rather than the lack of an act. Abstention will be an effective way of influencing the outcome of the ballot, as hon. Members emphasised earlier. If Parliament had introduced a requirement for a threshold, it would be iniquitous to oblige the Electoral Commission to encourage voting without acknowledging that abstention can also be active. As has already been said, electors may enter a polling booth and consciously not cast a vote. That is an act of abstention, although it is just as carefully thought through as voting for one or other of the candidates on the ballot paper. If a threshold is introduced, it will be necessary, in all the provisions relating to encouraging voting and allowing the Electoral Commission to disseminate information, to recognise the significance of abstention in determining the outcome of a ballot. 
 I am sure that we could engage in a lengthy argument about the benefits of introducing a threshold, but I would prefer to leave that debate for another day and discuss whether the amendments flow, logically and necessarily, from a decision to introduce a threshold. Bearing in mind the guidance given to the Committee by Mr. Butterfill this morning, it would probably be appropriate to withdraw the amendment on the understanding that if Parliament introduced the concept of thresholds during consideration of the Bill in the House, the amendments would be reintroduced at a later stage, hopefully by the Government, technically to perfect a gap in the Bill's architecture.

Christopher Leslie: Did I hear the hon. Gentleman correctly? Is he seeking to withdraw amendments Nos. 32 and 33? I am curious because even assuming that the amendments are not freestanding and are consequential—amendment No. 32 would leave out ''voting'' and insert ''participating'' and amendment No. 33 would provide that abstention should be treated as an act of participation—the hon. Gentleman would be asking the Electoral Commission to encourage abstention. Is that right?

Philip Hammond: The Minister has taken the argument a step too far. In requiring the Electoral Commission to encourage participation in the election, the amendment simply recognises the logic of the fact that, if there is a threshold, abstaining will not be a neutral act, but could have an impact on the outcome. If the purpose of clauses 7 and 8 is to ensure that electors are well informed, and if there is a threshold requirement, it is essential that electors understand how the act of abstaining, as well as the act of voting
 either way, will contribute to determining the outcome. It is an education process. I do not think that anybody in this Room would deny that if a threshold requirement is introduced, abstaining could have an effect on the outcome of the referendum. If it did not, the idea of a threshold would not have generated the heat that it has. If the purpose of these two clauses is the education of the electorate, it must be an education about all the effects and consequences of any course of action. If Parliament is minded to introduce a threshold, such consequences would flow from that.

Kevan Jones: I find it intriguing that the Electoral Commission was set up to encourage people to vote, but we are arguing that we should be encouraging it to encourage abstention. Does the hon. Gentleman define abstention in two different ways? For example, someone might go to the poll and ruin the ballot paper and someone else might sit at home and not turn up. How do we judge whether the act of abstention is positive or not?

Philip Hammond: It is an interesting question, but it cannot be answered—[Interruption.] It cannot be answered because we do not know how the Government intend to conduct the referendum. Although the Liberal Democrat amendment appears to suggest that the Electoral Commission will make that decision, I understand very clearly from talking to the Electoral Commission that it will not. The Government will decide how the referendum is to be conducted. Will it be by electronic voting, postal ballot or by means of conventional polling booths? The hon. Gentleman's question is valid and legitimate, but it is impossible to answer it until we know how the Government will conduct the referendum. If it were to be conducted by universal postal ballot, with no option of going to the polling station, or by text message, I imagine that my answer to his question would be very different from if it were to be conducted by conventional means. [Interruption.] I have a touch of the MacShanes, Mr. Benton, I hope that you will excuse me. I have explained the purpose of tabling the amendments and I would be interested to hear the Minister's response.

Matthew Green: The amendments are rather bizarre. Take the example of inserting ''participating'' and leaving out ''voting''. ''Participating'' has a very wide definition. Leading the Electoral Commission to aid campaigns that would encourage abstention and not taking part in the democratic process seems strange and convoluted, not to say perhaps a misuse of public money. I am surprised that the Conservatives wish to encourage such a misuse of public funds.
 In amendment No. 28 in particular, ''abstention'' is used in a way that suggests that the majority of those who abstain do not wish to have a referendum. All those people who abstain and those who vote no would be added up as an argument against the referendum. In a sense, the amendment does not take into account that people might abstain because they are happy with a decision that might be taken anyway, whether they vote or not. The amendment bears no relation to the fact that some people do not 
 vote because they are ill. Some people do not vote because they are dead but still on the electoral register. There are a variety of reasons why someone might have ''abstained''. I realise that there might have been occasions when someone who was dead might have voted, but that is an abuse of the electoral system and should not be encouraged.

Philip Hammond: I accept that the hon. Gentleman is making an argument against the introduction of thresholds, which is a substantive issue that we will debate later. However, does he accept that if thresholds are set—we do not know at what level they would be set—campaigning for abstention is a legitimate political activity?

Matthew Green: No, I do not accept that campaigning for abstention, or providing information that aids people to abstain is a legitimate use of public funds, which is exactly what we are debating. The Electoral Commission is funded by public money.

Jim Knight: Is it not bizarre that the amendment would alter a section entitled ''Encouraging voting''? Line 37 includes the phrase
''for the purpose of encouraging voting at referendums''.
 The Opposition's amendment would amend a section with the heading ''encouraging voting'', which includes the phrase ''encouraging voting'', but they then talk about not being able to encourage voting because it may affect the outcome of the referendum. The argument is entirely contradictory.

Philip Hammond: On a point of order, Mr. Benton. I seek guidance more than anything. I did ponder that issue, but I had always been under the impression that the headings in Bills were for convenience only and did not have any force or effect. I would appreciate guidance as to whether that is the case.

Joe Benton: That is right. The hon. Gentleman is correct on that point of order.

Matthew Green: The amendments are designed to change the very basis on which the Electoral Commission was set up in the first place. As such they should not be accepted into a Bill that is not, in the main, concerned with the Electoral Commission. If the Conservatives wanted to make changes to the Electoral Commission, they should have done so when it was set up. This is not the time to start making changes to the way in which the Electoral Commission works.
 The amendments are some of the strangest that we have seen today, in that they ask a publicly funded body to aid and abet an action—[Hon. Members: ''Inaction.'']—Yes, inaction. Most of us would regard that as being against the democratic process. The amendment is very strange indeed and we will not support it.

Christopher Leslie: I am absolutely in awe of the ability of the hon. Member for Runnymede and Weybridge to make his arguments with a straight face. He nearly cracked at the end. He nearly let his visage slip. I was absolutely astonished at his skill and ability in making that very difficult point, not least because of the consequential effects of the amendments. I am duty
 bound in the short time that I have to try to dissect what remains left on the floor of the amendments.
 As I understand it, amendment No. 32 would allow encouragement by the Electoral Commission of participation rather than voting. I would urge the Committee to resist that because ''voting'' is a clear and unambiguous act, whereas participation is rather more vague and ill defined. The Opposition have linked that with amendment No. 28, to allow abstention to be as encouraged as well as voting. Amendment No. 33 defines abstention as an act of participation. Therefore, if the amendments were agreed, there would be a rather bizarre situation. The hon. Member for Runnymede and Weybridge visited the poor old Electoral Commission, but I bet that he did not tell it at the time that he would be trying to persuade it to encourage abstention. [Interruption.] If the hon. Gentleman said, as I thought, that the commission was looking to him to draw these matters out, I would be interested to hear—

Philip Hammond: That is not what I said. I said that the Electoral Commission is more switched on than the Minister gives it credit for. It had a fully marked-up copy of the Bill and all the amendments sitting on the table.

Christopher Leslie: I am sure that the Electoral Commission treated the hon. Gentleman's amendments with the mirth that they deserve. Thank goodness there is little prospect of Conservative Members being in a position to enact some of those provisions.
 Amendment No. 28, to clause 8, would give information about the significance of abstention to the referendum's outcome. However, the Government believe that the best way for people to participate in a referendum is to cast a vote. That is not exactly rocket science; it is a fairly straightforward principle in our democracy. Voting is the only way in which people can clearly and unambiguously express their view on the referendum question, so the Electoral Commission should encourage voting, not abstention. The fairest and simplest approach is to decide solely on the basis of the votes cast. 
 The concept of formalised abstention is unworkable, because it is impossible to determine whether someone deliberately abstained or was apathetic. Opposition Members know the concept of being decidedly undecided or actively apathetic. Although it might be instinctive for them to dither, equivocate and fudge in that way, most people are capable of deciding and cherish their right to vote. It would be equally silly to suggest that if non-voters were considered in this regard, they should also be considered in general or local elections, for which turnout might also be questioned. 
 I believe that the Electoral Commission will encourage as many people to vote as possible, so that a referendum shows the real views of the people in the region. We want to consider all ways of encouraging voting and boosting voter turnout. We want to engage the public, whom we all represent. I therefore hope that the Committee will resist the amendments.

Philip Hammond: It would not have been my choice to argue for the consequential amendments before having had the debate on the substantive amendment. That is simply the rather bizarre—to use a popular word—structure of our debates. We shall return to the substantive issue. Many people strongly feel that we must not go down the route of having a series of initiatives that provoke little public interest and generate little participation, but that are then imposed on us as a result of small levels of assent—possibly a 51 per cent. yes vote on a 22 per cent. turnout. That is simply not enough to make a significant change to our constitutional arrangements.
 Many of my hon. Friends raised the need for a threshold on Second Reading. If the Minister had been a little more forthcoming this morning about what he would regard as an appropriate level—

Gary Streeter: It is his fault.

Philip Hammond: Of course it is his fault; he is the Minister responsible. If he had been more forthcoming this morning, perhaps we could have had this debate in a different atmosphere. He could have said to me,
 ''Don't be absurd. Of course we aren't going to set up a regional assembly on the back of 11 per cent. of the electorate in a region voting yes.'' However, in the absence of any ministerial confirmation, we have to assume the worst. We must assume that, if 20 per cent. turn out and 51 per cent. of them vote yes, the Government may go ahead and set up a regional assembly.
 We want to consider thresholds. We hope that, in the course of that debate, we may elicit from Ministers some guidance as to the internal flexible and non-statutory thresholds that they will impose on themselves. That would be extremely helpful to us all in our consideration of these matters. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Further consideration adjourned.—[Mr. Woolas] 
 Adjourned accordingly at four minutes past Seven o'clock till Tuesday 10 December at half-past Ten o'clock.